You are here: / Fourth Department

Tag Archive for: Fourth Department

SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT’S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, vacating defendant's sentence, determined it appeared the sentencing judge mistakenly believed he was bound by his agreement with the People to impose a particular sentence:

County Court initially imposed a one-year term of interim probation. The court informed defendant that, if he complied with the terms of interim probation, the court would impose a five-year term of probation. Defendant, however, repeatedly violated those terms. At sentencing, the court stated that “the only way” it could secure defendant a plea bargain involving probation was to help negotiate a plea agreement with “specific terms,” including a “severe sanction” in the event that he violated the terms of interim probation. The court then stated that it had to “keep [its] word,” presumably to the People, because otherwise it would be unable to secure the “same opportunity for another defendant who is in a similar situation.” The court further stated that it was “compelled” to impose an indeterminate term of incarceration of 2⅓ to 7 years, which is the maximum legal sentence (see Penal Law § 70.00 [2] [d]; [3] [b]).

Defendant contends that the court failed to exercise its discretion at sentencing. We agree. “[T]he sentencing decision is a matter committed to the exercise of the court's discretion . . . made only after careful consideration of all facts available at the time of sentencing”… . “The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . Here, the court indicated that it was bound by its agreement with the People to impose a particular sentence … . People v Dupont, 2018 NY Slip Op 06392, Fourth Dept 9-28-18

CRIMINAL LAW (SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT'S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))/JUDGES (CRIMINAL LAW, SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT'S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))/SENTENCING (CRIMINAL LAW, SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT'S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))

INMATE’S ‘THREAT’ TO BRING A LAWSUIT WAS NOT AN ACTIONABLE RULE VIOLATION (FOURTH DEPT).

The Fourth Department, annulling the “threats” charge, determined that the “threat” to file a lawsuit was not a proper basis for the charge:

… [R]espondent's determination of guilt on the threats charge under inmate rule 102.10 must be annulled. Although respondent correctly notes that “an inmate need not threaten violence in order to be found guilty of [making threats under rule 102.10]” … , a statement cannot be a “threat” within the meaning of inmate rule 102.10 unless, at the very minimum, it [*2]conveys an intent to do something illegal, improper, or otherwise prohibited … . Here, petitioner did not convey an intent to do anything illegal, improper, or otherwise prohibited. To the contrary, petitioner merely conveyed his intent to exercise his constitutional right to access the courts … , and he cannot be penalized for “threatening” to do something, i.e., file a lawsuit, that he has every legal right to do. As the United States Supreme Court has explained, “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, . . . and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is patently unconstitutional' ” (Bordenkircher v Hayes, 434 US 357, 363 [1978], reh denied435 US 918 [1978], quoting Chaffin v Stynchcombe, 412 US 17, 32 n 20 [1973]). Moreover, respondent's interpretation of the word “threat” in this context would effectively nullify the protections afforded by Correction Law § 138 (4), which bars an inmate from being “disciplined for making written or oral statements, demands, or requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution.” Matter of Gourdine v Annucci, 2018 NY Slip Op 06391, Fourth Dept 9-29-18

DISCIPLINARY HEARINGS (INMATES) (INMATE'S 'THREAT' TO BRING A LAWSUIT WAS NOT AN ACTIONABLE RULE VIOLATION (FOURTH DEPT))

DEFENDANT OFFERED A NONNEGLIGENT EXPLANATION OF THE REAR-END COLLISION, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiffs' motion for summary judgment in this rear-end collision case should not have been granted. Defendant offered a nonnegligent explanation of the accident:

“It is well settled that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle . . . In order to rebut the presumption [of negligence], the driver of the rear vehicle must submit a non[]negligent explanation for the collision . . . One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle . . . , and such an explanation is sufficient to overcome the inference of negligence and preclude an award of summary judgment” … . Here, defendant averred that he was traveling behind the vehicle in which plaintiff was a passenger when it stopped suddenly at a green light and that, despite his efforts, he could not stop in time to avoid a collision. Plaintiff offered a contrary account in her affidavit. Thus, there is an issue of fact sufficient to defeat plaintiffs' motion with respect to the issue of negligence … . Macri v Kotrys, 2018 NY Slip Op 06387, Fourth Dept 9-28-18

NEGLIGENCE (DEFENDANT OFFERED A NONNEGLIGENT EXPLANATION OF THE REAR-END COLLISION, PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS  (DEFENDANT OFFERED A NONNEGLIGENT EXPLANATION OF THE REAR-END COLLISION, PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/REAR-END COLLISIONS  (DEFENDANT OFFERED A NONNEGLIGENT EXPLANATION OF THE REAR-END COLLISION, PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR’S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM’S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT).

The Fourth Department reversed defendant's conviction finding that the for cause challenge to a juror should have been granted. The trauma surgeon who testified about the wounds suffered by the victim had been the trauma surgeon who saved the juror's life. Because there will be a new trial, the Fourth Department ruled the evidence (multiple stab wounds) did not support charging the jury with the lesser included offense of reckless assault:

A prospective juror may be challenged for cause on, inter alia, the ground that he or she has some relationship to a prospective witness at trial of a nature that “is likely to preclude [the prospective juror] from rendering an impartial verdict”… . Such a relationship gives rise to what is known as “an implied bias' . . . that requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial”… , and “cannot be cured with an expurgatory oath” … . Not every potential juror-witness relationship necessitates disqualification, but courts are “advised . . . to exercise caution in these situations by leaning toward disqualifying a prospective juror of dubious impartiality' “… . Relevant factors for the court to consider in determining whether disqualification is necessary include the nature of the relationship and the frequency of contact … . The denial of a challenge for cause has been upheld where the relationship at issue arose in a professional context and “was distant in time and limited in nature” … . Conversely, the Court of Appeals has required disqualification where the relationship was “essentially professional” but “also somewhat intimate” .

We conclude that the juror's testimony indicated a likelihood that her relationship to the surgeon was of a nature that would preclude her from rendering an impartial verdict. The juror was in the hospital for an extended period of time suffering from an unspecified trauma. During that time, the surgeon was primarily responsible for the juror's care, and they had contact on at least a daily basis. Most significantly, the juror was convinced that the surgeon had saved her life. Thus, although the relationship arose in a professional context, it was, at least from the juror's perspective, something more than a mere professional relationship. People v Farley, 2018 NY Slip Op 06380, Fourth Dept 9028-18

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT)}/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT)}/FOR CAUSE CHALLENGE (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT)}/ASSAULT (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT))

ARBITRATOR’S AWARD WAS NOT IRRATIONAL, SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD IN THIS REAR-END COLLISION CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator's award in this rear-end collision case should not have been vacated:

“It is well settled that judicial review of arbitration awards is extremely limited” … . As relevant here, a court may vacate an arbitration award if it finds that the rights of a party were prejudiced when “an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511 [b] [1] [iii]).

… An arbitrator exceeds his or her power where, inter alia, the award is “irrational”… , i.e., “there is no proof whatever to justify the award”… . Where, however, “an arbitrator offers even a barely colorable justification for the outcome reached, the arbitration award must be upheld” … . Here, the arbitrator's determination is not irrational inasmuch as defendant submitted evidence establishing that plaintiff's injuries were not serious or were not caused by the accident … .

Plaintiff correctly concedes that the arbitrator did not “imperfectly execute[]” his power (CPLR 7511 [b] [1] [iii]), inasmuch as the arbitration award did not ” leave[] the parties unable to determine their rights and obligations,' ” fail to ” resolve the controversy submitted or . . . create[] a new controversy' ” … .

Additionally, “it is well established that an arbitrator's failure to set forth his [or her] findings or reasoning does not constitute a basis to vacate an award” … . Whitney v Perrotti, 2018 NY Slip Op 06343, Fourth Dept 9-28-18

ARBITRATION (ARBITRATOR'S AWARD WAS NOT IRRATIONAL, SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD IN THIS REAR-END COLLISION CASE (FOURTH DEPT))/CPLR 7511(ARBITRATOR'S AWARD WAS NOT IRRATIONAL, SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD IN THIS REAR-END COLLISION CASE (FOURTH DEPT))

QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant's motion for summary judgment in this skiing accident case should not have been granted. Plaintiff was injured in a collision with defendant. The assumption of the risk doctrine did not preclude the suit because a question of fact had been raised about whether defendant acted recklessly:

… [P]laintiffs submitted, inter alia, an affidavit from an emergency room physician who was also an 11-year veteran of the National Ski Patrol. Based on his review of the depositions and other records related to the case, the expert opined that, given the nature and extent of plaintiff's injuries, “there [was] no question [that] the force with which [defendant] impacted [plaintiff's] left side and back was immense” and that plaintiff's injuries were “not consistent with [defendant's] deposition testimony” that he had come to or nearly come to a complete stop. The expert further opined that, “[g]iven that [plaintiff] was skiing slowly at the time of the collision, the severe injuries sustained by [both] men, and their unanimous testimony that the collision was severe, it [was] clear [that defendant] was snowboarding at an extremely high rate of speed at the time of the collision.” The expert thus concluded that defendant had “unreasonably increased the risk of harm” to plaintiff by cutting across the beginner trail “at an extremely high rate of speed . . . knowing that there would be skiers and snowboarders traveling down [the beginner trail]” and that defendant's conduct constituted “an egregious breach of good and accepted snowboarding practices.” * * *

… [T]the record establishes that the collision was exceedingly violent and, inasmuch as we must accept as true plaintiff's testimony that he was the one who was skiing slowly … , there is “at least a question of fact . . . whether . . . defendant's speed in the vicinity and overall conduct was reckless” … . Contrary to defendant's contention, the affidavit of plaintiffs' expert was neither conclusory nor speculative … . Sopkovich v Smith, 2018 NY Slip Op 06342, Fourth Dept 9-28-18

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SKIING (QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ASSUMPTION OF RISK (SKIING ACCIDENT, QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

, , , , ,

ALTHOUGH DISCLOSURE OF INSURER’S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT).

The Fourth Department, reversing Supreme Court, determined that complete disclosure of a supplemental underinsured motorist (SUM) file should not have been ordered in this traffic accident case. The court noted that Lalka v ACA Ins.Co., 128 AD3d 1508 (4th Dept 2015), to the extent that it held that disclosure is allowed only up to the date of commencement of an action, should no longer be followed. However, the proper procedure is the creation of a privilege log followed by in camera review:

… [D]efendant's motion for a protective order was based upon the assertion that any documents contained in the claim file after the date of commencement were materials protected from discovery. Thus, the sole issue on appeal is whether defendant met its burden of establishing that those parts of the claim file withheld from discovery contain material that is protected from discovery. We conclude that defendant did not meet that burden.

To the extent that Lalka … holds that any documents in a claim file created after commencement of an action in a SUM case in which there has been no denial or disclaimer of coverage are per se protected from discovery, it should not be followed. Rather, a party seeking a protective order under any of the categories of protected materials in CPLR 3101 bears “the burden of establishing any right to protection” … . ” [A] court is not required to accept a party's characterization of material as privileged or confidential' “… . Ultimately, “resolution of the issue whether a particular document is . . . protected is necessarily a fact-specific determination . . . , most often requiring in camera review' ” … .

Here, we conclude that defendant failed to meet its burden inasmuch as it relied solely upon the conclusory characterizations of its counsel that those parts of the claim file withheld from discovery contain protected material. We nonetheless further conclude that, under the circumstances of this case, the court abused its discretion by ordering the production of allegedly protected documents and instead should have granted the alternative relief requested by defendant, i.e., allowing it to create a privilege log pursuant to CPLR 3122 (b) followed by an in camera review of the subject documents by the court … . Rickard v New York Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 06333, Fourth Dept 9-27-18

CIVIL PROCEDURE (ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/CPLR 3101, 3122  (ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/INSURANCE LAW (CIVIL PROCEDURE, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/SUPPLEMENTAL UNDERINSURED MOTORIST (SUM)  (CIVIL PROCEDURE, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/TRAFFIC ACCIDENTS (CIVIL PROCEDURE, INSURANCE LAW, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/PRIVILEGE (CIVIL PROCEDURE, INSURANCE LAW, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/EVIDENCE (CIVIL PROCEDURE, INSURANCE LAW, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/IMMUNITY  (CIVIL PROCEDURE, INSURANCE LAW, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))

,

FRAUD WARRANTED INVALIDATION OF THE DESIGNATING PETITION (FOURTH DEPT). ​

The Fourth Department determined the designating petition was properly invalidated on the basis of fraud:

 “As a general rule, a candidate's designating petition will be invalidated on the ground of fraud only if there is a showing that the entire designating petition is permeated with that fraud” … . “Even where the designating petition is not permeated with fraud, however, when the candidate has participated in or is chargeable with knowledge of the fraud, the designating petition will generally be invalidated” (id. at 509). Here, petitioners established that multiple subscribing witnesses, including respondent, attested falsely that they had witnessed certain signatures on the designating petition inasmuch as they had allowed third-parties to sign the petition on behalf of the person named as the signatory on the designating petition … , and that respondent attested to certain signatures although he was not “in the presence of the signatories when [they] signed the [designating] petition” … . Thus, the court properly determined that respondent's participation in fraudulent acts warranted invalidating the designating petition for the Democratic Party … . Matter of Buttenschon v Salatino, 2018 NY Slip Op 05988, Fourth Dept 9-7-18

ELECTION LAW (FRAUD WARRANTED INVALIDATION OF THE DESIGNATING PETITION (FOURTH DEPT))/FRAUD (ELECTION LAW, FRAUD WARRANTED INVALIDATION OF THE DESIGNATING PETITION (FOURTH DEPT))

“OPPORTUNITY TO BALLOT” REMEDY AVAILABLE WHERE SIGNATURES ON A NOMINATING PETITION INVALIDATED FOR A TECHNICAL DEFECT AND THE PARTY WOULD BE LEFT WITHOUT A CANDIDATE (FOURTH DEPT).

The Fourth Department determined, pursuant to the “opportunity to ballot” remedy, 24 signatures on a nominating petition should not have been invalidated because the signatures had appeared on a prior nominating petition for a candidate who had withdrawn:

… [T]he equitable remedy of opportunity to ballot is appropriate here … . The remedy of an ” opportunity to ballot' . . . was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office”… . Here, the Board determined that 24 of the signatures on petitioner's nominating petition were invalid because the signers had previously signed the nominating petition of a candidate who later withdrew from the race. Although the fact that a voter has previously signed another candidate's petition is typically a substantive defect … , we conclude that such a defect is a technical one where, as here, the candidate with a prior nominating petition withdrew that petition prior to the voters signing the second nominating petition … . We thus conclude that the registered voters of the Republican Party should be afforded an opportunity to ballot for the office at issue, and we therefore modify the order accordingly. Matter of Trevisani v Karp, 2018 NY Slip Op 05966, Fourth Dept 9-5-18

ELECTION LAW (“OPPORTUNITY TO BALLOT” REMEDY AVAILABLE WHERE SIGNATURES ON A NOMINATING PETITION INVALIDATED FOR A TECHNICAL DEFECT AND THE PARTY WOULD BE LEFT WITHOUT A CANDIDATE (FOURTH DEPT))/OPPORTUNITY TO BALLOT (ELECTION LAW, “OPPORTUNITY TO BALLOT” REMEDY AVAILABLE WHERE SIGNATURES ON A NOMINATING PETITION INVALIDATED FOR A TECHNICAL DEFECT AND THE PARTY WOULD BE LEFT WITHOUT A CANDIDATE (FOURTH DEPT))

IN THIS COMMON LAW DISSOLUTION ACTION, PLAINTIFF WAS ENTITLED TO PAYMENT BY THE CORPORATION OF HIS EXPENSES FOR DEFENDING AGAINST THE CORPORATION’S COUNTERCLAIMS, AND PLAINTIFF’S MOTION TO PROHIBIT THE DEFENDANTS FROM USING CORPORATE FUNDS TO DEFEND AGAINST THE COMMON LAW DISSOLUTION ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, over a dissent, determined plaintiff, who owns shares in a closely held corporation and sued the corporation seeking common law dissolution, was entitled payment by the corporation of expenses associated with plaintiff's defense of counterclaims made by the corporation. In addition plaintiff's cross motion to restrain the defendants from using the corporation's funds for defense of the common law dissolution action should have been granted:

The counterclaims are asserted against plaintiff “by reason of the fact that he . . . was a director or officer of the [C]orporation,” and Business Corporation Law § 722 (a) provides that he may be indemnified by the Corporation for his “reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding . . . if [he] acted, in good faith, for a purpose which he reasonably believed to be in . . . the best interests of the [C]orporation.” That is so even though the counterclaims are brought, in part, by the Corporation itself … . Pursuant to section 724 (c), where, as here, “indemnification is sought by judicial action, the court may allow a person such reasonable expenses, including attorneys' fees, during the pendency of the litigation as are necessary in connection with his [or her] defense therein, if the court shall find that the [person seeking indemnification] has by his [or her] pleadings or during the course of the litigation raised genuine issues of fact or law.” “With respect to the advancement of fees, courts have consistently observed that the governing standard is not a stringent one' “… . All plaintiff was required to do was raise a genuine issue of fact or law …, and we conclude that he has done so. We thus modify the order accordingly, and we remit the matter to Supreme Court for a determination of reasonable attorneys ' fees and litigation expenses that should be reimbursed to plaintiff, subject to repayment in the event defendants are successful on their counterclaims … . …

Here, as in judicial dissolution proceedings, “the corporation appears as a nominal party and the proceeding amounts to a dispute between the shareholders”… . We thus conclude that “corporate funds may not be used in payment of counsel fees for the individual shareholders” regardless of the fact that this is a common-law dissolution proceeding … . Feldmeier v Feldmeier Equip., Inc., 2018 NY Slip Op 05893, Fourth Dept 8-22-18

CORPORATION LAW (IN THIS COMMON LAW DISSOLUTION ACTION, PLAINTIFF WAS ENTITLED TO PAYMENT BY THE CORPORATION OF HIS EXPENSES FOR DEFENDING AGAINST THE CORPORATION'S COUNTERCLAIMS, AND PLAINTIFF'S MOTION TO PROHIBIT THE DEFENDANTS FROM USING CORPORATE FUNDS TO DEFEND AGAINST THE COMMON LAW DISSOLUTION ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/DISSOLUTION, COMMON LAW (CORPORATION LAW, IN THIS COMMON LAW DISSOLUTION ACTION, PLAINTIFF WAS ENTITLED TO PAYMENT BY THE CORPORATION OF HIS EXPENSES FOR DEFENDING AGAINST THE CORPORATION'S COUNTERCLAIMS, AND PLAINTIFF'S MOTION TO PROHIBIT THE DEFENDANTS FROM USING CORPORATE FUNDS TO DEFEND AGAINST THE COMMON LAW DISSOLUTION ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy